Month: November 2021

I wrote an essay at Newsweek about the S.B. 8 oral arguments. It is often precarious to read the tea leaves, but the brew here was quite strong. And my prognosis is bleak. The piece is titled, In Texas Abortion Case, Kavanaugh and Barrett Caved to Judicial Supremacy.

Here is the introduction:

On Monday, the U.S. Supreme Court heard oral arguments in two challenges to S.B. 8, Texas’ new abortion law. The “fetal heartbeat” statute allows private citizens to sue those who perform, aid or abet abortions. The government itself is expressly barred from enforcing the law. Texas cleverly made it difficult, if not impossible, for abortion providers to block the enforcement of S.B. 8.

Yet, two members of the Court seem prepared to creatively jettison long-standing precedent to stop the law nonetheless. Regrettably, Justices Brett Kavanaugh and Amy Coney Barrett have succumbed to judicial supremacy. A defeat here for Texas will be short-lived. But the long-term impact of this judicial descent will endure for a generation.

From the conclusion:

Three decades ago, Justice Sandra Day O’Connor observed that “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” She was right. When abortion is at issue at the Supreme Court, all bets are off.

In time, Justices Kavanaugh and Barrett may very well produce rulings that advance judicial conservative principles. But arguments yesterday paint a bleak portrait of the road ahead. Conservative lawyers, and Federalist Society members in particular, should no longer feel compelled to apologize for or defend these two jurists.

The Texas case is certainly not the first, or the last straw. In case after case, Justices Kavanaugh and Barrett have denied review to resolve pressing issues concerning the free exercise of religion, freedom of speech and other core constitutional areas. And where they have ruled, they drag their feet with the veil of moderation. Yet with abortion, they are prepared to bend over backwards, and modify long-standing precedent, to ensure expeditious review is permitted. Barely two months ago, both jurists allowed S.B. 8 to go into effect. They may now regret those rulings.

In short order, the two newest members of the Court have sipped from the trough of judicial supremacy

For those who wish to read more about judicial supremacy, my article on Cooper v. Aaron may be of interest.

I will have much more to say about this case–in particular the significant problems with permitting suit against the clerks.

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The Biden administration is pressing ahead with requiring workers to get their COVID jab or potentially lose their job, a move that will certainly invite legal challenges. Later this week, the U.S. Department of Labor will publish its rule mandating that private sector businesses with 100 or more employees have all their workers either get vaccinated or get periodic testing for COVID-19, reports the Wall Street Journal. 

The Department of Labor said that the Office of Management and Budget (OMB) had completed its review of the vaccine mandate on Monday, and the full text would be available in “the coming days.”

Also on Monday, the Biden administration released the details of a separate mandate requiring government contractors to get the vaccine. The new guidance tells contractors to provide “counseling and education” to employees who refuse the vaccine “followed by additional disciplinary measures”, reports Roll Call. Firing non-vaccinated employees should be a last resort, according to the new government guidance. It also gives contractors the ability to grant their employees medical and religious exemptions.

Both vaccine mandates have proven controversial. Some business associations have asked that the rules be delayed through the end of the holidays so as not to add to existing staffing shortages.

“Now placing vaccination mandates on employers, which in turn force employees to be vaccinated, will create a workforce crisis for our industry and the communities, families and businesses we serve,” said Chris Spear, president of the American Trucking Association in a letter to OMB, reports CNBC.

Employers that don’t comply with the new rule will face fines of up to $13,600 per violation, per the Journal.

On September, 24 Republican state attorneys general sent the Biden administration a letter calling its vaccine mandate for private employees a “disastrous and counterproductive” policy based on “flimsy legal arguments.” Should the White House not change course,  they said they would “seek every legal option available to…uphold the rule of law.”

A few trade associations seem interested in taking up the case too.

The National Federation of Independent Businesses, which represents small businesses, said in a September letter that the administration was forcing its members to “serve as the government’s instruments of coercion against its own employees.” Those are fighting words.

George Mason University law professor Ilya Somin, writing at The Volokh Conspiracy (which is hosted at Reason), has argued that the federal government is on its firmest legal ground when mandating vaccines for its own employees. A mandate that the employees of private companies get the shot as well, and the emergency rule-making process that the Biden administration is using to implement that mandate, “are legally dubious and would set a dangerous precedent, if upheld,” writes Somin.

Expect lawsuits to fly once the full text of the vaccine mandate is released.

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FREE MARKETS

Voters in Minnesota’s Twin Cities will vote on rent control ballot initiatives in local elections today. Both are bad, but one is far worse than the other. Minneapolis’s City Question 3 is the less offensive of the two. It would merely allow the city council to either pass a rent control measure of its own or submit one to voters in the form of a referendum.

A majority yes vote on Question 3 wouldn’t require the city to adopt a rent control measure. But it obviously would create a huge amount of political pressure to act on the will of voters. Minneapolis Mayor Jacob Frey, who is up for reelection today as well, has said he’ll vote yes on the measure, reports the Minneapolis Star-Tribune. His top opponents in the mayoral election have likewise endorsed Question 3.

In contrast to Minneapolis’ non-binding referendum, the ballot measure going before voters in neighboring St. Paul would, if approved, impose a binding 3 percent cap on rent increases. That’s a much lower ceiling that recently passed rent control laws in Oregon and California, which cap rent increases at 7 percent and 5 percent respectively.

Those laws also allow those rent increases on top of inflation. St. Paul’s does not, meaning that if inflation were to exceed 3 percent, landlords would effectively be required to lower real rents.

Oregon and California’s rent control laws also exempt buildings that are less than 15 years old from their price caps in an effort to limit the disincentive these laws create to build new housing. St. Paul’s ballot initiative has no such exception for new housing.

For that reason, even proponents of more limited forms of rent control have criticized the St. Paul measure as extreme and likely to reduce new housing construction.

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ELECTION 2021

It’s election day! Here are a few races and referenda to keep your eye on as voters go to the polls.

• Voters in Virginia will pick a new governor today in a closely watched, increasingly tight race. Up until a few months ago, it looked like the election was former Democratic Gov. Terry McAuliffe’s to lose. The state has been trending blue in recent years and hasn’t elected a Republican governor since 2009. McAuliffe’s series of gaffes, including saying that parents shouldn’t tell teachers what to teach, have helped put Republican Glenn Youngkin ahead in some recent polls.
• Less exciting is the gubernatorial race in New Jersey, where incumbent Democratic Gov. Phil Murphy is running as much as 11 points ahead of his Republican opponent, former state legislator Jack Ciattarelli. Under Murphy, New Jersey had one of the highest COVID death rates and some of the country’s strictest lockdown policies. If he wins, Murphy will be the first Democratic governor reelected in New Jersey since Brenden Byrne in 1977, reports NPR.
• Bloomberg‘s CityLab reports that $27 billion in bond initiatives are on Tuesday’s ballots. That’s about half the amount of borrowing voters were asked to approve last year, with the lower figure explained in part by a surge in federal pandemic aid to states and localities, despite many of them running massive surpluses.
• FiveThirtyEight notes that there are a number of special congressional elections as well, including two in Ohio’s (solidly blue) 11th and (solidly red)15th districts. A Democratic primary will also be held in Florida’s 20th District to fill the vacant seat of the late Alcee Hastings. Given the district’s deep blue makeup, this will likely determine the winner of the general election to be held in January.
• In addition to rent control, Minneapolis voters will decide whether to abolish their police department and replace it with a department of public safety. The more things change…

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QUICK LINKS

• The Biden administration is expected to announce new rules limiting methane emissions.
• Political dirty trickster and Donald Trump supporter Roger Stone has said he might try to run for Florida governor on the Libertarian Party ticket if current Gov. Ron DeSantis doesn’t order an audit of the 2020 election.
• After activists defeated plans for a market-rate housing complex in San Francisco’s Mission district, the city plans to step in and build affordable housing on the site. The San Francisco Business Times says that the permitting process for that affordable housing will start in 2025. In unrelated news, a new report finds that low- and middle-income workers can’t afford to live in San Francisco.
• Yahoo is the latest tech company to pull out of China.
• A Squid Game-inspired cryptocurrency “collapses in apparent scam” reports the BBC.

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Washington Free Beacon:

The Yale Law School administrator caught on tape pressuring a student to apologize for an allegedly racist party invitation pushed the Yale Law Journal to host a diversity trainer [Ericka Hart] who told students that anti-Semitism is merely a form of anti-blackness and suggested that the FBI artificially inflates the number of anti-Semitic hate crimes….

The controversy began when a law journal editor asked Hart why her presentation had addressed inequities like “pretty privilege” and “fatphobia” but not anti-Semitism. According to the memo, which collected feedback on the training from 33 law journal editors, Hart responded that she’d already covered anti-Semitism by discussing anti-blackness, because some Jews are black. She also raised questions about FBI data showing that Jews are the most frequent targets of hate crimes—implying, in the words of one journal editor, that the people compiling those statistics had an “agenda.”

“She basically said anti-Semitism is a subset of anti-blackness,” a Yale Law Journal member told the Free Beacon. “She didn’t recognize there could be anti-Semitism against white people.” That characterization is corroborated by two students quoted in the memo, and by a third who spoke on the condition of anonymity….

The journal solicited suggestions for a diversity trainer months earlier, according to the memo, and Eldik recommended Hart as an “impactful and informative” choice. The memo noted that Hart had already “led workshops for YLS Class of 2024’s 1L Orientation, the Afro-American Cultural Center at Yale, the Yale Good Life Center, and the Yale School of Nursing.”….

In her September presentation, Hart listed “perfectionism,” “objectivity,” “a sense of urgency,” and “the written word” as examples of “white supremacy culture.” Dismantling that culture, she said, required abolishing prisons, opposing capitalism, and imprisoning former president Donald Trump.

At least five different editors slammed the suggestion that things like “punctuality” and “objectivity” constitute white supremacy, with one going so far as to accuse Hart of racism. “How is it not infantilizing for her to stand up there and say such traits are inherently white,” the editor asked. “This sort of neoracism is not something we should be promulgating at the journal.”

The political culture at Yale Law School has been toxic for decades, but it was primarily student-driven; in my day, the faculty and staff were notably and noticeably committed to representing and encouraging students with diverse perspectives. Now, elements of the administration seems to be aligned with the most radical students, and beyond. Note that the whackadoodle diversity trainer had already “trained” first-year law students at orientation. It’s time for Dean Heather Gerken to clean house.

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I hope you squirreled away that cool 16 cents you saved on your Fourth of July barbeque this year. Across the board, prices seem to be going up, up, up.

Gas is more expensive (up 42.7 percent). Cars and trucks, too (up 7.6 percent for new and 31.9 percent (!) for used). Your wallet is surely feeling the burn at the grocery store (up 3 percent). Meat, in particular, is getting really expensive (up 10.5 percent), to the sure delight of the anti-animal food crusaders out there. According to the Bureau of Labor Statistics’ official measure of the Consumer Price Index (CPI), pretty much everything is more expensive across the board: 5.4 percent more expensive when compared to last year, according to government bean counters.

Watch how you talk about this seeming inflation online, though. And watch what you read, too.

We know we need to be on the lookout for wrecking misinformation when it comes to our health, our elections, and our political class’s networking equipment. Now we can add our economy to the mix. According to some experts, talking about rising prices could be extremely dangerous to our democracy.

This problematic price commentary is emanating from some interesting quarters: namely, Twitter CEO Jack Dorsey, whose platform is among the goodest of boys in sniffing out and slapping warning labels on dangerous content like obituaries and reports on errant laptops.

Dorsey recently took to his microblogging platform to offer some thoughts on what the officials have assured us is transitory inflation. The Bitcoin aficionado and also-CEO of payment platform Square tweeted: “Hyperinflation is going to change everything. It’s happening.” He got an assist from fellow very online tech billionaire Elon Musk who agreed that “short-term we are seeing strong inflationary pressure.”

Plenty of experts jumped in to fact check him. Hyperinflation, they say, is a rare and specific event involving periods of 50 percent inflation or higher within one month that has only occurred a few times in history. We all know about the Weimar Republic and Zimbabwe. Actually, the United States had a few brushes with almost or basically hyperinflationary events following the Revolutionary and Civil Wars—remember those continentals from high school history? But we’re far from hyperinflationary, our beloved and trusted experts say. And while we’re on the subject, maybe we need more inflation anyway.

Okay, maybe “hyperinflation” was a little dramatic. Let he who has never exaggerated on social media for effect cast the first stone. But most people got the picture: young Americans on Twitter are about to experience an inflationary episode unlike anything they’ve seen.

The criticism went beyond merely correcting someone’s usage of a technical economic concept. For some, this should be a bannable offense.

Notably, a writer for WIRED clucked that “like ‘divorce’ in a marriage”—or, for the season, like “Beetlejuice” in a haunted Connecticut country home—”this word @jack” should not be uttered unless you’re trying to bring it into being.” Shame on him. “How insanely reckless to tweet this. Immoral. Jack, ban thyself.”

Immoral! Are inflation hawks the new hate speakers now?

It is true that expectations do affect behavior and therefore prices. But any brouhaha Dorsey could stir up with his monetary shitpost obviously pales in comparison to the potent macroeconomics factors—spending and printing bonanzas, high debt overhangs, lockdown policies, and the current situation with the supply chain, to name a few—that are truly driving the “transitory” inflation that our widely respected experts do admit.

What is truly reckless is the suggestion that people should be scared to talk about their experience with everyday prices or risk reprisals. Ironically, censoring talk about rising prices is exactly what you’d expect to see in a high inflationary or hyperinflationary scenario.

Argentina, which has struggled with persistently high levels of inflation, reported official price numbers that were so unbelievable that independent economists started publishing their own. The government moved to punish anyone who deviated from the official narrative on inflation with fines of $120,000.

When things get really bad, the government simply stops publishing price data at all. This is what happened in Venezuela, whose central bank merely stayed mum when monthly inflation started to shoot up into the double-digit zone. Zimbabwe, a country almost synonymous with hyperinflation, again recently stopped reporting inflation data.

Thankfully, we’re not quite at the point where the government is pulling down price data and rounding up dissidents. We’re just hounding rich guys with FU money and the powers of platform censorship to STFU about inflation and stop other people from talking about it too. At least he didn’t pull the tweet down or apologize. But if Jack Dorsey can’t talk about rising prices on Twitter without major controversy, what hope do plebs like us have?

Hopefully Dorsey’s convictions will be strong enough to head off his Trust and Safety Team’s polite suggestions to start fact-checking and labeling inflation claims like his. He feels strongly about monetary sovereignty; it’s like his one thing. But he’s clashed with them publicly before and got overruled. Maybe Twitter gets a phone call strongly encouraging them to start countering economic misinformation. And Twitter is just one platform. Others could very well start massaging opinions on rising prices with their own bags of tricks. We can’t count on centralized platforms to protect our abilities to speak freely about inflation.

It’s good to start planning ahead. The technologist Balaji Srinivasan has started a $100k bounty for a censorship-resistant inflation dashboard that could accurately report prices through future monetary headwinds. It would be decentralized, which means that anyone could contribute price data and no one could shut it down or remove information that certain people don’t like. If built, we won’t have to fear that the government can easily snuff out independent economic data. Government economists could pull down whatever datasets they usually maintain, as states often do in inflationary events. This kind of system would provide a much-needed private backup.

The massaging of public opinion in response to perceived government failures has by now become something of a meme. First, it’s not happening. Then, it’s happening, but only temporarily. Then it’s happening because of Bad People and you’d better not contribute. Finally, it’s happening to you, and that’s A Good Thing. Depending on where you look, you can find some version of all of these narratives.

But rising prices affects everyone in a very immediate and material way, unlike some other political footballs. And it’s often a key procyclical indicator of establishment collapse. The stakes here are high, so the attempted controls on discourse may be more desperate. Keep an eye out.

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